Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD218116, Charles G. Rogers, Judge.
O'ROURKE, J.
Cordell Anthony Fletcher entered into a plea agreement that included a waiver under People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), stating that if he committed a crime pending sentencing, the trial court could withdraw its proposed maximum sentence of nine years eight months. Prior to sentencing, Fletcher was arrested and charged with another crime. When Fletcher appeared for sentencing, the court sentenced him to thirteen years eight months.
Fletcher contends the court erred by failing to conduct an evidentiary hearing before finding a breach of the terms of the Cruz waiver, and the error violated his due process rights. Fletcher did not obtain a certificate of probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304.) We affirm.
BACKGROUND
Under a June 2009 written plea agreement, Fletcher pleaded guilty to two counts of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)); two counts of possessing cocaine base for sale (Health & Saf. Code, § 11351.5); and one count of resisting an officer (Pen. Code, § 148, subd. (a)(1)). He admitted enhancement allegations regarding his prior convictions for narcotic offenses (Pen. Code, § 1203.07, subd. (a)(11); Health & Saf. Code, §§ 11370, subd. (a) and 11370.2, subd. (a)); his five previous convictions that qualified as probation denial priors (Pen. Code, § 1203, subd. (e)(4)); three prison priors and three previous strike priors (Pen. Code, §§ 667.5, subd. (b) 668, 667, subds. (b)-(i) and 1170.12.) In exchange, the court agreed to a maximum sentence of nine years eight months. The plea agreement included a Cruz waiver stating, "I understand that if pending sentencing I am arrested for or commit another crime... the sentence portion of this agreement will be cancelled. I will be sentenced unconditionally, and I will not be allowed to withdraw my guilty/no contest plea(s)."
At the end of the hearing, after the plea was taken, the court advised Fletcher: "There is something that I want to tell you, and I say this hoping it won't happen, but I need to be sure that we're all on the same page here. This sentencing hearing is being set out quite a ways. One of the understandings of this plea is that you're not to break the law between now and then. If you broke the law, your pleas would stand, but the deals would not necessarily stand. Do you understand?" Fletcher replied that he understood. Defense counsel added, "Just to reiterate that point, [Fletcher] did execute the Cruz waiver on the plea form, and we have thoroughly reviewed the fact that he has now exposed himself to 25 to life based on the prior strikes."
At the September 2009 sentencing hearing, the court pointed out that in July 2009, Fletcher was arrested and charged with felony possession of cocaine base (Case No. CD222008). The court discussed the new case with the parties in an unreported conference and stated on the record: "The court has been made aware of the circumstances that underlie the arrest and the filing of the felony charge in the new case, and I am satisfied that those circumstances of the new charge constitute a violation of the agreement or the failure of the condition precedent, if you will, to the court's imposing a nine year, eight month sentence in the case as to which the plea was entered. [¶] [Fletcher] was not supposed to break the law between the entry of the plea and the sentencing date, and I'm satisfied that there is compelling evidence that he was found in personal possession of cocaine base either on the premises or after leaving a known narcotics house. Therefore, as was explained when the plea was taken, the plea... stands, but the court's sentencing commitments do not stand."
The court asked defense counsel if any legal cause barred sentencing as scheduled. Defense counsel said no, proceeded to argue for the court to strike Fletcher's strikes, and concluded, "I understand the court's disappointment in the fact that [Fletcher] picked up the new case, but it goes to the argument that the addiction is so strong and so great. He spent all of the time out of custody from when this case originally started back, I believe, around January, until he pled before this court. He made all of his appearances; he was clean; he hadn't picked up any new offenses. [¶] And I don't know if it was the thought of a prison return or what pushed him back over the edge, but the addiction was so great that even the knowledge that he was facing 25 to life and a Cruz waiver wasn't enough to keep him from being in possession." Fletcher addressed the court, asking to be permitted treatment for his addiction and saying, "Well, I'm here to accept responsibility for my actions because I have done wrong. But, like my lawyer said, I'm a drug addict."
The court struck two strike priors and one prison prior, and sentenced Fletcher to 13 years, 8 months. In light of the sentence, the People moved to dismiss the charges in case no. CD222008, and the court granted the motion.
DISCUSSION
Fletcher contends the court erred in finding he violated the terms of the Cruz waiver without holding an evidentiary hearing or advising him of his right to one. The People counter that Fletcher's appeal lacks merit because he failed to obtain a certificate of probable cause and, alternatively, he forfeited the claim by not objecting to the trial court proceedings. Moreover, the People argue, due process does not require a hearing before his sentence could be increased for a Cruz violation and, at any rate, the sentencing hearing provided such an opportunity. Finally the People argue that any error was harmless.
We conclude Fletcher did not require a certificate of probable cause prior to filing this appeal because he " ' is not attempting to challenge the validity of his plea of guilty but is asserting only that errors occurred in the subsequent adversary hearing[] conducted by the trial court for the purpose of determining... the penalty to be imposed. ' " (People v. Johnson (2009) 47 Cal.4th 668, 677 compare People v. Puente (2008) 165 Cal.App.4th 1143, 1149-1151 (Puente)[defendant claimed on appeal that the trial court had failed to follow certain procedures related to his violating plea agreement, but through plea agreement he had waived the right to those procedures, thus defendant was attacking validity of plea agreement and a certificate of probable cause was required].)
"A 'Cruz waiver' gives a trial court the power to 'withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term, ' if the defendant willfully fails to appear for sentencing." (Puente, supra, 165 Cal.App.4th at p. 1146, fn. 3.)
Similar to a Cruz waiver, a " 'Vargas waiver' is derived from the case of People v. Vargas (1990) 223 Cal.App.3d 1107, 1113..., where the defendant agreed in a plea bargain to be sentenced to a two-year term if he appeared for sentencing and a five-year term if he failed to appear for sentencing. The defendant failed to appear for sentencing and the court sentenced the defendant to a five-year term, which the appellate court deemed proper." (Puente, supra, 165 Cal.App.4th at p. 1145, fn. 2.)
Due process is a flexible concept calling for whatever procedural protections a particular situation demands. (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1399.) " ' "[T]he central meaning of procedural due process is that the parties whose rights are to be affected are entitled to be heard at a meaningful time and in a meaningful manner." ' " (People v. Graves (2010) 189 Cal.App.4th 619, 645; quoting Fuentes v. Shevin (1972) 407 U.S. 67, 80.) "Nothing in the Vargas line of cases requires a formal petition detailing the violation." (People v. Carr (2006) 143 Cal.App.4th 786, 791-792.)
Here, the flexibility inherent in due process allowed for Fletcher's rights to be protected. Any hearing requirement was satisfied in the present case. Fletcher had prior notice both of the terms of the waiver and the alleged violation. He was arrested for the second case in July 2009, approximately one month after his plea agreement and two months before the sentencing hearing. Therefore, following his arrest, he was on notice he likely had breached the terms of the plea bargain. In that interim, he had an opportunity to ready any questions, concerns or countervailing considerations regarding the factual basis for his arrest or the charges against him, and he had ample opportunity to present them to the court at the sentencing hearing. He did not do so. Further, at the sentencing hearing, the court formally notified him of his breach of the plea, but he did not raise any questions regarding the nature of the charges against him, or whether it constituted a breach of his plea. He also did not request a continuance to prepare such a presentation. To the contrary, Fletcher, through his counsel, agreed to be sentenced and acknowledged he had been unable to abide by the Cruz waiver due to his drug addiction. Fletcher himself told the court he had done wrong and took responsibility for his actions. (Accord, People v. Carr, supra, 143 Cal.App.4th at pp. 790-791.)
We note that in light of the court's increased sentence in the underlying case, the allegations in the new case no. CD222008 were dismissed.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. IRION, J.